April 06, 1999
by Robin Bynoe (partner of the Charles Russel law firm) , ZDNet UK
Sex on the Internet has always been a contentious issue but now, inevitably, we have drugs on the Internet as well. Equally inevitably, the drug of choice tends to be the mighty Viagra, which neatly combines the two.
It is possible to buy Viagra, generally from America, over the Internet without the risk of embarrassment. More importantly for the more squeamish amongst us, you can skip the risk of a GP suggesting that an injection in the affected (or insufficiently affected) part might be more appropriate than a little blue pill.
It's possible to buy Viagra without the intervention of a doctor or a pharmacist, but is it legal?
Internet law, what Internet law?
In Britain, along with the rest of the EU, it is illegal to advertise Viagra -- like other prescription drugs -- to the general public. It is also illegal to supply it except through a pharmacist who requires a prescription from a doctor. The Medicines Act 1968 says so.
It is also illegal to import a prescription drug. However, there is an exception: it is perfectly legal for an individual to import a prescription drug so long as it is for personal or family use and not for resale. Far from writing the law specifically for Viagra users, this exception was presumably included to avoid making criminals of returning holiday-makers.
There is of course a category of restricted drugs which cannot be imported or held, even by holiday-makers. Heroin is included in it. Viagra is not.
Take me to your dealer...
Then there is the position of the supplier, or, as the pharmaceutical industry probably considers it, the dealer. In England the Medicines Act stops you advertising restricted drugs or supplying them without the benefit of a doctor's prescription. But these things are legal in the United States. The supplier breaks no law in his/its jurisdiction and the purchaser breaks no law in his.
The last question is whether the UK courts could assert jurisdiction over an American supplier and find it guilty under British law or issue an order forbidding it to supply into the UK.
Already there are similar cases in which that has happened in the US. The best known is that of US v Thomas where operators of an "adult" bulletin board in California were successfully prosecuted in Tennessee for obscenity. Their site was quite acceptable in California and was also available in Tennessee which was far too much for the more vulnerable souls of that state. So in Tennessee they went to prison.
What to do?
It's unlikely that the British courts would be so aggressive. For one thing, they dislike making orders where there is absolutely no chance of anyone taking any notice. It's bad for discipline. For another, they tend not to interfere with foreigners who are obeying their own law in their own land. That's just bad manners.
But the world is shrinking, as General Pinochet recently discovered and the position might be different if the supplier had a presence in Europe as well as in the US. amazon.com, for example, is dipping its toes into the world of drugs, and when major players become involved the chances of a test case increase.
The ISPs, as these estimable and benign institutions have discovered to their cost, also tend to be on the receiving end of any lawsuit related to Internet use but it is difficult to see on what basis.
Unilateral action by the UK parliament is also unlikely because it would be too difficult to enforce.
The most probable outcome is some sort of international agreement which is guaranteed to take years.
In short, those whose slavish devotion to the screen is ruining their social life, no longer have any excuse. The Internet brings its own releases.
The plain brown envelope rides again?
- It is illegal to advertise Viagra -- it is a prescription drug.
- It is illegal to supply Viagra except through a pharmacist who requires a prescription from a doctor.
It is also illegal to import a prescription drug unless:
a) It is for personal or family use
b) It is not for resale